Excerpt:.....disinterested and trustworthy evidence that she ever expressed an unequivocal desire to acquire indian domicile or indian nationality during the span of six years from 1947 to 1953 or even up to 1956. at this stage i refer to the form of application filed by the petitioner on 2-6-1956 for the purposes of securing permission for indefinite stay in india. it is interesting to note that from september 1953, up to february 1956 she had come to india off and on on no less than twelve occasions, but had each time gone back to pakistan. this clearly shows that on no occasion, before 2-6-1956, did she care to apply to the authorities concerned in the republic of india either for becoming a citizen of india or for permanently staying here. the learned judges in this connection dissented from..........the circumstances disclosed on this record there is no question of retention of the british indian domicile because british india, as a territorial unit having a uniform system of law, had ceased to exist. for these reasons, winan's case, 1904 ac 287, is of no real guidance in the decision of the present controversy. mr. partap singh next relied upon sayeedah khatoon v. state of bihar, air 1951 pat 434, but, the facts of the reported caseare wholly different and distinguishable and cannot possibly be of assistance in the case before me in any case, what little support the learned counsel could derive from this decision, is completely lost to him because this decision was reversed by the supreme court in state of bihar v. amar singh, (s) air 1955 sc 282. the order directing the.....

Judgment:ORDER

I.D. Dua, J.

1. This petition under Article 226 of the Constitution of India praying for quashing the order of the Governor of Punjab dated 17th of December 1957 or for other writ or direction has been filed on the following allegations: The petitioner asserts that she was born in village Markhai, Tehsil Zira, District Ferozepore in India, on 2nd of February 1928, from parents who were and are still residents of the aforesaid village; she studied in the Nurse and Mission School at' Jagraon, District Ludhiana, till 1938 and from the year 1940 to 1942 she studied in the Government Girls High School, Ferozepore.

Due to the death of her brother the petitioner went to village Markhai and in the year 1946 she proceeded to Lahore and joined the Lady Atchison Hospital for getting training as a nurse. While there she was awarded a stipend by the Government which she was getting at the time of the partition of the country. In the year 1947, according to the petitioner, the Government obtained option from the Government servants, and the prescribed form was issued to the petitioner whereupon she opted for coming to India.

According to her, she waited for the Government orders, for a considerably long period for being deported to India but she did not receive any orders and as a last resort she approached the Deputy High Commissioner, for India in Pakistan in the year 1950 and applied for being brought to India; to this again no reply was received by her. The petitioner also alleges to have approached the Camp Commandant of the abducted women's camp at Lahore to send her to India so as to join and look after her parents who are blind; she was on every occasion given a hope that she would be sent to India but this promise never matured.

At last in 1953, according to her petition, the petitioner managed to obtain a valid passport dated 8th of June, 1953 from the Passport Officer, Government of Pakistan, indicating her place and date of birth to be Ferozepore and 2nd of February, 1928 respectively; she entered India on 19th of September, 1953 and afterwards visited Fezorepore several times, with long stays with her parents, till the date of the present petition.

On 13th of January, 1958, she received the order of the Governor of Punjab dated 17th of December, 1957 directing her to leave India within 15 days of the receipt of the order, failing which she was liable to be prosecuted and deported under the Foreigners Act, 1946. The petitioner has challenged the legality of this order on the ground that she is a citizen of India having been born in village Markhi, Tehsil Zira, District Ferozepore, and having been in the service of the Government of India.

In para 9 of the petition, she has asserted that one Shri Pritam Singh Head Constable was deputed to make an enquiry in connection with her application for permission to stay in India permanently, but he has reported against the petitioner by staring that she has been creating factions in the Christian society. According to the petitioner, this report is mala fide and has been inspired by the petitioner's refusal to treat some male patients whom the Head Constable desired her to treat.

2. In the written statement filed by the respondents it is denied that she was in Government service at the time of the partition of the country, thus the question of option for service in India by her does not arise. The assertions with regard to her birth are neither admitted nor denied as the Government as stated to have no knowledge about them,

It is, however, asserted that from the Pakistani passport obtained by the petitioner it is clear that she is a Pakistani national. Her status as an Indian citizen is specifically denied. It is also stated that she is a 'foreigner' within the meaning of this word as defined in Section 2(a) of the Foreigners' Act, 1946. It is also stated that there is no report by any Head Constable Pritam Singh on the record; on the other hand the reports against her are from the Senior Superintendent of Police and the Deputy Commissioner, Ferozepore.

It may here be stated that the petitioner had also challenged the validity of the impugned order on the ground that the original order had not been communicated to the petitioner and that it was only the order of Shri Gurbux Singh respondent No. 2 which had been communicated and this order had no legal sanction behind it. This allegation is also denied in the written statement and it is maintained that the exit notice communicated to the petitioner is the original exit notice; this order as signed/by. Shri Gurbux Singh in the capacity of Deputy Secretary to Government, Punjab SomeDepartment, is perfectly valid and the officer is stated to be fully competent to sign and communicate; it is further alleged that it was not necessary to mention the reasons in the notice itself.

3. Mr. Partap Singh, the learned counsel for the petitioner, has placed his principal reliance on Article 5 of the Constitution and has submitted that the petitioner is a citizen of India because she was born in India and has her domicile in the territory of India. It is obvious that Articles 6 and 7 have nothing to do with the case of the petitioner.

In order, however, to bring her case within the ambit of Article 5, it is necessary for her to prove two things : (1) that she has her domicile in the territory of India at the commencement of the Constitution; and (2) that she was born in the territory of India. It is admitted that she fulfils the condition of her birth being in the territory of India. The question, however, remains whether it can be said that she has her domicile in the territory of India.

In my opinion, the facts established on the record do not prove her case. Indisputably she left Ferozepore for Lahore in the year 1946 and continued to stay on in Pakistan right up to 1953. By virtue of Article 394 of the Constitution, Article 5 came into force on 26th of November, 1949. No material has been placed on the record to show that the petitioner had, on 26th of November 1949 or even on 26th January, 1950, her domicile in the territory of India.

Lahore, where she was residing since 1946, had gone to Pakistan and had thus become a foreign country. We do not find any documentary or other unimpeachable evidence suggesting that the petitioner had any animus to come to Ferozepore for permanent stay. She does not seem to have made a correct statement when she asserts that she was offered an option to opt for service in India. There is no proof even of her ever being in the service of the Government of India.

Mr. Partap Singh wants me to infer that because the petitioner's parents are residing in Ferozepore therefore she must be assumed to entertain an animus to retain her domicile of origin. It may in this connection be stated that as observed in Mrs. Rosetta Evelyn Attaullah v. Justin Attaullah A.I.R. 1953 Cal. 530, it is not correct to say that although British India has ceased to exist, a person who had originally a domicile of British India will continue to have the same.

As a result of the provisions contained in the Indian Independence Act a person who had originally the domicile of British India, unless he had subsequently acquired the domicile of some other country outside the ambit of the territories which were originally British India, would automatically acquire the domicil either of India or of Pakistan.

Even if it were possible for a British Indian subject to retain (after 15th August 1947) the BritishIndian nationality, a person who was not onehabitually resident within that portion of BritishIndia which became the Indian Dominion and wassubsequently declared to be the Indian; Republic,cannot, even on the principles, applied to cession ofterritories, acquire, after the 15th August 1947,the nationality of the Dominion of India or theRepublic of India that is Bharat.

We have thus to see whether after the 15th of August 1947 it can be said that the petitioner had acquired the domicile of the Indian Dominion and the domicile of the Republic of India at the commencement of the Constitution, There is absolutely noreliable and trustworthy material which can show that the petitioner acquired such domicile. Mr. Partap Singh submits that the petitioner's statement that she wanted to acquire the domicile of the Indian Dominion in 1947 and of the Indian Republic should be considered to be sufficient and that it would then be for the Government to establish that this is not the petitioner's intention or animus.

I wholly disagree with this contention. No authority in support of his submission has been quoted by the learned counsel. He has, however, placed reliance on Rule 8 contained at page 97 of Dicey's Conflict of Laws, 6th edition, which says -

'(1) The domicile of origin is retained until a domicile of choice is in fact acquired.

(2) A domicile of choice is retained until it is abandoned, whereupon either

(i) a new domicile of choice is acquired; or

(ii) the domicile of origin is resumed.'

This passage, in my opinion, is of no assistance to the counsel on the facts of the present case. The domicile of origin could not possibly be resumed as it had ceased to exist on 15th of August, 1947 with the disappearance of British India as such. In so far as the acquisition of new domicile is concerned it is for the petitioner to establish by reliable evidence that she had acquired the domicile of the Dominion of India or the Indian Republic as the case may be.

In the absence of such evidence it can legitimately be assumed, on the facts of the present case, that she had acquired domicile of Pakistan. Mr. Partap Singh has referred me to Winans v. Attorney-General, 1904 AC 287, in support of his submission that the onus of proving, that a domicile has been chosen in substitution for the domicile of origin, lies upon those who assert that the domicile of origin has been lost. The domicile of origin continues unless a fixed and settled intention of abandoning the first domicile and acquiring another as the sole domicile is clearly shown.

In this connection I must emphasise that the rules of Conflict of Laws or of Private International Law as adumbrated by various writers do not have any statutory force of universal application in all countries. These rules have been deduced, from certain decided cases, as they arose from time to time in different countries. What actually happened in our country, at the time of partition in 1947, is unprecedented and two Dominions were carved out of the erstwhile British India; one of the Dominions professed to be an Islamic theocratic State and the other a secular democratic social welfare State.

All those whose permanent home was in the territory which became the territory of India and who did not believe in the ideology of the Islamic theocratic State crossed over and came to reside in the territory included, in the territory of India; others continued to stay on in Pakistan. In this background it is rather difficult for me to impute to the petitioner, who voluntarily continued to stay in Pakistan, an animus to acquire the domicile of the Indian Dominion at the time of the partition.

In the circumstances disclosed on this record there is no question of retention of the British Indian domicile because British India, as a territorial unit having a uniform system of law, had ceased to exist. For these reasons, Winan's case, 1904 AC 287, is of no real guidance in the decision of the present controversy. Mr. Partap Singh next relied upon Sayeedah Khatoon v. State of Bihar, AIR 1951 Pat 434, but, the facts of the reported caseare wholly different and distinguishable and cannot possibly be of assistance in the case before me in any case, what little support the learned counsel could derive from this decision, is completely lost to him because this decision was reversed by the Supreme Court in State of Bihar v. Amar Singh, (S) AIR 1955 SC 282. The order directing the lady, in the reported case, to leave India, which, had been set aside by the Patna High Court, was-upheld as valid by the Supreme Court.

4. It is admitted that the petitioner entered. India on a Pakistani passport. Mr. Partap Singh. has, however, in this connection relied on Mohammad Khan v. Government of Andhra Pradesh, AIR 1957 Andh Pra 1047, in support of the contention that securing of a passport from a foreign country cannot be so construed as to deprive a person of his true nationality. The facts of the reported case are, however, peculiar and the observations contained in this judgment are confined to the peculiar facts and circumstances of that case.

It appears that one Mohammad Khan who had been born in village Thukhayi, Tehsil Barshore, Taluk Pishin, Quetta district in Baluchistan (British India), which is now a part of Pakistan, had left his native place in 1940 and had settled down at Kavvur which was then part of Madras State and later become part of Andhra Pradesh. He started business in that place and was eking out his livelihood. He also married at Kavvur one Amirunnisa, whose father was a permanent resident of that place and was employed in Government service, and his two children were also born and bred up there.

Mohammad Khan purchased a site at Kavvur and constructed a house worth about Rs. 10,000/-and had also been doing lorry transport business. After the division of Inida, under pressure from; the local police and without proper guidance and appreciation of his citizenship rights, he applied in India for a passport and received one under the seal of the High Commissioner for Pakistan in India, New Delhi, dated 7-3-1953. It was on these facts that Subba Rao C. J., observed that this did not affect the true nationality of Mohammad Khan.

It need hardly be stated that this decision can be of little or no guidance to me in deciding the question of the petitioner's domicile. The next authority to which reference has been made is Dawood Ali Arif v. Deputy Commissioner of Police, 62 Cal WN 729: (AIR 1958 Cal 565), but the ratio of this decision, to a considerable extent, goes against the petitioner's contention. It lays down that a passport by itself is not a conclusive proof of nationality; it is, however, accepted as a proof of the fact, by international agreement and comity of nations.

But whatever the probative value of it, a person who has deliberately applied for a passport, affirming himself to be a Pakistani national, cannot be heard to say that he did so under false pretences. The last case, on which reliance has been placed by the counsel for the petitioner, is Central Bank of India Ltd. v. Ram Narain, (S) AIR 1955-SC 36, where the principles for determining domicile have been laid down. This decision speaks of two constituent elements to be necessary by English Law for the existence of domicile: (1) a residence of a particular kind, and (2) an intention of a particular kind.

There must be the factum of residence, and there must be the animus. The residence need not be continuous but it must be indefinite, not purely fleeting. The intention must be a present intention to reside for ever in the country where theresidence has been taken up. It is also a well established proposition that a person may have no home but he cannot be without a domicile and the law may attribute to him a domicile in a country wherein in reality he has not.

In order to make the rule, that nobody can be without a domicile, effective, the law assigns, what is called a domicile of origin to every person at his birth. This prevails until a new domicile has been acquired, so that if a person leaves the country of his origin with an undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country.

In this case a man, who had his domicile of origin in Multan, was held to continue to have the domicile of origin when he continued to stay in Multan after the partition of the country till the time he expressed is unequivocal desire of giving up that domicile and of acquiring Indian domicile and also took up his residence in India. His domicile was not determined, by the Supreme Court, by his family coming to India and without a finding that he had established a home for himself in India.

The facts of the reported case are obviously very much different from those with which I am dealing in the instant case. It may, however, be borne in mind that the petitioner has not resided in the Dominion of India or in the Republic of India the time of their creation up to the year 1953, when she entered the Indian Republic on a Pakistani passport, and there is absolutely no reliable 'or disinterested and trustworthy evidence that she ever expressed an unequivocal desire to acquire Indian domicile or Indian nationality during the span of six years from 1947 to 1953 or even up to 1956.

At this stage I refer to the form of application filed by the petitioner on 2-6-1956 for the purposes of securing permission for indefinite stay in India. In this application, which is signed by the petitioner, who is literate in English language, she has described her national status and domicile to be Pakistani. She has also mentioned that she was a civilian Government servant in Pakistan. She secured a passport from the Passport Officer of the Government of Pakistan, Lahore, on 9-6-1953, on the authority of which she had entered the Indian Republic.

It is true that she stated that she had been trying to apply for permanent passport but could no get it, but this bare assertion, unsupported as it is by independent evidence, is of little value in establishing the petitioner's Indian domicile. It is interesting to note that from September 1953, up to February 1956 she had come to India off and on on no less than twelve occasions, but had each time gone back to Pakistan. This clearly shows that on no occasion, before 2-6-1956, did she care to apply to the authorities concerned in the Republic of India either for becoming a citizen of India or for permanently staying here.

It is, in the circumstances, almost impossible to place any reliance on her bare assertion that she had all along been trying to come over to India and to stay here permanently as an Indian citizen, and that the Pakistan authorities did not permit her to come away. Mr. Partap Singh laid great emphasis on the assertion made by his client that her father and mother are old and blind and there is no one to look after them. This assertion is belied bv the statement contained in the above form signed by the petitioner on 2-6-1956.

It is stated therein that her elder sister Is staying with her parents and that her uncle is also living in District Ferozepore. The false assertions made by the petitioner have not created any favourable impression on my mind and I am inclined to think that the petitioner is not incapable of making false statements when it suits her. Mr. Kaushal has drawn my attention to Nisar Ahmed v. Union of India, AIR 1958 Raj 65, for the proposition that, that place is properly the domicile of a person in which his habitation is fixed without any present intention of removing therefrom.

Mr. Kaushal has also referred me to Vijay Transport Co. v. Appellate Tribunal of State Transport Authority, Jaipur, AIR 1958 Raj 165; and Ghaurul Hasan v. The State of Rajasthan, AIR 1958 Raj 172. The former case, however, deals with the power of the High Court to interfere under Article 226 and the latter case lays down that according to Rule 3 of Schedule 3 of the Citizenship Rules, 1956, the acquirement of a passport of another country is conclusive proof that the person acquiring that passport, even though he might be of Indian origin before the partition, was a citizen of the country from which he acquired the passport.

The learned Judges in this connection dissented from the law as laid down in AIR 1957 Andh Pra 1047. After giving my most anxious thought to the arguments advanced by the counsel, in my opinion, even though the securing of a passport from a foreign country be not considered to be conclusive proof of the nationality of the applicant, it certainly raises a strong presumption in favour of the citizenship asserted by him or her, as the case may be, for the purpose of securing the passport.

In the present case the petitioner secured a passport from Pakistan and entered the Republic of India under the protection of the Pakistan Government; in addition she also asserted herself to be a Pakistani national when she applied to the Government of India on 2-6-1956 for securing permission to reside permanently in the Indian Republic; there is absolutely no suggestion that the statements contained in the application dated 2-6-1956 are incorrect or were made under pressure or misapprehension,

Indeed Mr. Partap Singh was not able to offer any cogent or plausible explanation for these statements. Coupled with the complete absence of any independent, disinterested and trustworthy evidence showing her genuine intention to permanently stay in India before 2-6-1956, though admittedly she had come here on at least a dozen occasions, the above statements conclusively show that she had never before entertained any real desire to acquire Indian citizenship or even Indian domicile. The petitioner has thus hopelessly failed to show that she is a citizen of India.

5. Lastly, Mr. Partap Singh has submitted that the impugned order is invalid because it has not been passed by the Governor and has merely been passed by the Deputy Secretary. This contention is wholly devoid of force. The order purports to be an order of the Governor and merely because the Deputy Secretary has conveyed this order to the petitioner it does not cease to be the Governor's order and does not on this account become invalid.

6. For the reasons given above, this writ petition fails and is hereby dismissed with costs.